[WSBAPT] discretionary trust funding

[Mark Vohr]

Krista –

            I think the person to exercise that discretion would be the Personal Representative, not the trustee.  The trustee does not come into play until the trust is funded.  Prior to that point the trustee has not authority over the estate assets.  It’s the PR who has control.

            Allowing a PR with that discretion is OK, now and then we see Last Wills with discretionary special needs trusts where the PR has the discretion to fund a special needs trust or distribute the funds outright depending on the needs/condition of the beneficiary.  The challenge is picking a PR who will exercise that duty responsibly and with the appropriate level of care.

            Hope that helps.

Mark



Ohana Fiduciary Corp.
Ohana Financial Services

Mark C. Vohr, J.D., CPG, Principal
PO Box 33710  Seattle, WA  98133
T:  (206) 782-1189 F:  (206) 782-1434
mcv at ohanafc.com<mailto:mcv at ohanafc.com>      www.ohanafc.com<http://www.ohanafc.com/>




From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Krista MacLaren
Sent: Tuesday, August 29, 2017 10:02 AM
To: wsba probate & trust <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] discretionary trust funding

Hi Folks,

I sent this out on Friday but didn’t get any responses, so I thought I would try again.

I am wondering if anyone ever uses language in a Will saying that a testamentary trust shall be funded at the discretion of the trustee after meeting with the beneficiary?

I have a client who at this time doesn’t believe her 26 year old son is mature enough to receive an inheritance and not blow it (he has done some jail time and has debt from court fees for DUIs and related matters).  There is a good chance that by the time he receives anything, he will be more responsible (he is working and trying to pay off the debt).  The trustee was going to have a lot of discretion in making distributions, so trustee could just promptly distribute all assets, but I wondered if there is a good way to say that trustee has discretion as to whether to set the trust up at all.  I realize the beneficiary might be able to convince the trustee that he is fine/responsible when he is not, and I’m not sure what kind of proof would be appropriate, so maybe this is just a bad idea.

Thank you for any suggestions or opinions!


Krista J. MacLaren
Attorney at Law
Northgate Executive Center II
9725 3rd Ave NE, Suite 600
Seattle, WA 98115
(206)523-6116
kjm.inc at mac.com<mailto:kjm.inc at mac.com>

Please note, as with most email providers, Mac does not encrypt email messages.  Accordingly, the confidentiality of messages sent to this address cannot be assured.  This e-mail is intended for viewing only by the individual or entity to whom its content is addressed, and it may contain confidential or privileged information.  If you received this email in error, please honor the privacy of the intended recipient: reply to the sender regarding the error and delete the message.
Krista J. MacLaren
Attorney at Law
Northgate Executive Center II
9725 3rd Ave NE, Suite 600
Seattle, WA 98115
(206)523-6116
kjm.inc at mac.com<mailto:kjm.inc at mac.com>

Please note, as with most email providers, Mac does not encrypt email messages.  Accordingly, the confidentiality of messages sent to this address cannot be assured.  This e-mail is intended for viewing only by the individual or entity to whom its content is addressed, and it may contain confidential or privileged information.  If you received this email in error, please honor the privacy of the intended recipient: reply to the sender regarding the error and delete the message.

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